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Health Ombudsman v Shemer (No 2) QCAT 54
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Shemer (No 2)  QCAT 54
Occupational regulation matters
18 March 2019
On the papers
Judge Allen QC, Deputy President
The application for a non-publication order is refused.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – DISCIPLINARY PROCEEDINGS – NON-PUBLICATION ORDERS – where the respondent seeks orders that the Tribunal’s reasons be de-identified and that the publication of any documents, evidence or other material before the Tribunal that could identify the respondent be prohibited – where the conduct of the respondent grounding disciplinary action related to an impairment of the respondent – where the conditions placed upon the respondent’s registration mirrored the conditions of an earlier undertaking accepted by the National Board – where the impairment-related conditions of that undertaking were not published by the National Board –whether the impairment-related conditions placed upon the respondent’s registration are “confidential information” within the terms of s 66(2)(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether the interests of justice require the making of a non-publication order
Health Ombudsman Act 2013 (Qld), s 98
Health Practitioner Regulation National Law (Qld), s 266
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Health Ombudsman v Shemer  QCAT 53
J v L&A Services Pty Ltd (No.2)  2 Qd R 10
John Fairfax Group Pty Ltd v Local Court of New South Wales  26 NSWLR 131
LSC v XBV  QCAT 332
Medical Board of Australia v Waldron  QCAT 443
Lander & Rogers Lawyers
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- At the conclusion of the hearing of the substantive proceedings of the disciplinary referral, counsel for the respondent sought and was granted an opportunity to make written submissions seeking a non-publication order that would protect the identity of the respondent. Both parties have since filed written submissions with respect to such a matter.
- The respondent seeks an order that the Tribunal’s reasons be de-identified and that the publication of any documents, evidence or other material before the Tribunal that could identify the respondent be prohibited.
- The applicant opposes the orders sought by the respondent. The applicant submits in the alternative that any non-publication order:
- (a)should be limited to the materials filed before the Tribunal;
- (b)should be limited to paragraphs 11 to 18 of the conditions imposed by the Tribunal; and
- (c)should not prohibit the applicant providing material to the National Board.
- Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides as follows:
“(1) The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
(a) the contents of a document or other thing produced to the tribunal;
(b) evidence given before the tribunal;
(c) information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
- (2)The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
- (a)to avoid interfering with the proper administration of justice; or
- (b)to avoid endangering the physical or mental health or safety of a person; or
- (c)to avoid offending public decency or morality; or
- (d)to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- (e)for any other reason in the interests of justice.
- (3)The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative. (4) The tribunal’s power to act under subsection (1) is exercisable only by—
- (a)the tribunal as constituted for the proceeding; or
- (b)if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.”
- In LSC v XBV  QCAT 332, Peter Lyons QC stated:
“ Section 66 should be read with section 90 of the same Act. That section commences by identifying, as the primary rule, a requirement that a hearing of a proceeding be held in public. It then provides that the Tribunal may direct a hearing or part of a hearing be held in private, but only in circumstances similar to those specified in section 66, including where the Tribunal considers it necessary to make the order to avoid endangering the physical or mental health or safety of a person. As will become apparent, both sections give the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.”
- The exercise of the discretion pursuant to s 66(1) of the Act is informed by the paramount principle of open justice:
“Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the open administration of justice, freedom of speech, a free media and an open society require the court proceedings to be open to the public and able to be reported and discussed publicly.”
“… information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other ‘collateral disadvantage’…”
“… an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders and their various alternative forms.”
- Section 66(2) of the QCAT Act provides for the circumstances in which a non-publication order may be made. The Tribunal may make an order “only if the Tribunal considers the order is necessary” to avoid one of the specified consequences or “is necessary… for any other reason in the interest of justice”. The onus lies upon the party seeking the non-publication order to satisfy the Tribunal of its necessity.
- In Medical Board of Australia v Waldron  QCAT 443 at -, Sheridan DCJ observed:
“The wording of s 66(2) makes it plain that the discretion is not to be exercised lightly, and only if the Tribunal considers it necessary. The phrase “in the interests of justice”, whilst not defined and generally considered to confer a broad discretion, must be interpreted subject to those limitations.
The discretion given to the Tribunal by s 66 has been described as being “underpinned by the principle of open justice which aims to ensure not only that court proceedings are fully exposed to public scrutiny, but also to maintain the integrity and independence of the courts.” The onus is on the applicant to show special circumstances exist which justify the making of the order.”
- Counsel for the respondent points out that the conduct of the respondent constituting professional misconduct occurred as a consequence of the respondent’s substance abuse disorder. Such disorder constituted an impairment which led the Health Ombudsman to take immediate action to suspend the respondent’s registration. Subsequently, the National Board accepted undertakings offered by the respondent to protect the public from the risk imposed by his impairment. The undertakings included addressing the respondent’s impairment by requiring him to undergo hair and urine drug screening and to seek treatment from a general practitioner and a psychiatrist. The Health Ombudsman subsequently revoked the respondent’s suspension to allow the undertakings to take effect. Many of the respondent’s undertakings are listed on a publicly available register maintained by the Australian Health Practitioner Regulation Agency. However, the impairment related undertakings are not listed. The conditions imposed by the Tribunal on the respondent’s registration reflect the terms of the previous undertakings.
- Counsel for the respondent argues that the respondent’s impairment-related undertakings are presently confidential. It is submitted that the reasons of the Tribunal ought to be de-identified to avoid the publication of that confidential information. Whilst the impairment-related undertakings have been confidential, the impairment-related conditions will not be unless the subject of a non-publication order. Whilst the terms of the impairment-related undertakings are arguably “confidential information” within the terms of s 66(2)(d), it is not that information which would be published in the absence of a non-publication order. The Tribunal does not accept that the impairment-related conditions ordered by the Tribunal constitute “confidential information” within the terms of s 66(2)(d) of the QCAT Act. The Tribunal does not accept the submission that the reasons of the Tribunal ought to be de-identified because such an order is necessary to avoid the publication of confidential information within the terms of s 66(2)(d) of the QCAT Act.
- Counsel for the respondent further submits that there are reasons in the interest of justicewhy the Tribunal’s reasons ought to be de-identified:
- (a)If the matter had been referred to the Tribunal as an impairment matter as opposed to a disciplinary proceeding, then, pursuant to s 98 of the Health Ombudsman Act 2013 (Qld), the hearing would have been held in private unless it was in the public interest for it to be open to the public. Although the matter was referred to the Tribunal as a disciplinary proceeding, the misconduct the subject of the proceeding was inextricably linked to the respondent’s impairment and health issues. The respondent having, to his credit, taken steps to address his health issues, should not have details of his health condition published because the matter was referred to the Tribunal on the basis of his conduct rather than his impairment;
- (b)The applicant did not seek any substantive change to the undertakings that the respondent had previously voluntarily entered into with the National Board. The National Board has seemingly considered that the respondent’s impairment-related undertaking should not be publicly recorded in order to protect the respondent’s privacy and because there is no overriding public interest for them to be made public. However, if the National Board forms the view that the conditions imposed by the Tribunal have been imposed because of conduct (because this has been a disciplinary proceeding, not an impairment matter), the respondent will need to satisfy the National Board of the higher test that the publication of the conditions “would present a serious risk to the health or safety of the practitioner” in order to continue to have those undertakings (now converted to conditions) kept private (s 266(2) of the Health Practitioner Regulation National Law (Qld)). The respondent ought not to lose the benefit of privacy as he has to date simply because the undertakings had been converted to conditions.
- The applicant points to the provisions of the Health Practitioner Regulation National Law (Qld) in submitting that the non-publication order sought by the respondent ought not be made:
- (a)The National Board is obliged to publicly disclose the order made by the Tribunal, but in its discretion may choose not to disclose certain aspects of the order in certain circumstances;
- (b)If the respondent can show it is necessary (as opposed to being desirable) to protect his privacy he may ask the National Board to exercise its discretion; and
- (c)The National Board’s obligation to demonstrate transparency or open justice would defeat any benefit gained by the order sought by the respondent.
- The provisions of s 98 of the Health Ombudsman Act 2013 (Qld) have no application to the disciplinary proceedings before the Tribunal and are not relevant to the exercise of the discretion pursuant to s 66 of the QCAT Act.
- The fact that the National Board did not publish the impairment-related undertakings that are in the same terms as some of the conditions now ordered by the Tribunal does not mean that the Tribunal should now make a non-publication order with respect to those conditions or the wider non-publication order sought by the respondent. It is not clear that the National Board would choose not to publish those conditions in any event. That the Board is obliged to publish the orders made by the Tribunal weighs against the utility of the orders sought by the respondent. The Tribunal is not satisfied that it is necessary in the interests of justice that a non-publication order be made.
- The respondent has not established any of the circumstances in s 66(2) of the QCAT Act.
- Accordingly, the application for a non-publication order is refused.
- Published Case Name:
Health Ombudsman v Shemer (No 2)
- Shortened Case Name:
Health Ombudsman v Shemer (No 2)
 QCAT 54
Deputy President Judge Allen QC, Dr J Cavanagh, Dr J Osborne, Mrs F Petty
18 Mar 2019